LOUISVILLE, Ky. (WDRB) – The Jefferson Commonwealth's Attorney's Office has asked Kentucky Chief Justice John Minton to recuse Circuit Court Judge Olu Stevens from all cases pending before the judge, arguing he has shown bias against top prosecutor Tom Wine.

Assistant Commonwealth's Attorney Jeff Cooke, a spokesperson for the office, confirmed the request was made to Minton Wednesday afternoon. But Cooke said Minton is out of town, so it is unclear when he will rule.

The request follows two days of prosecutors asking Stevens to recuse himself from criminal cases that came before him, claiming his Facebook posts about Wine, the Commonwealth's Attorney, proved he could not be impartial.

On Tuesday, Minton removed Stevens from two cases after the judge had refused similar requests to step aside. Minton ruled prosecutors had "demonstrated disqualifying circumstances that require the appointment of a special judge."

All day Wednesday, Stevens continued to refuse to recuse himself from cases, saying he could be “fair and impartial” despite his disagreement with Wine over jury issues.

The cases moved forward Wednesday after Stevens denied the motions.

If Stevens is recused from presiding over criminal cases, it is likely he would continue to handle civil suits while other judges took over his criminal docket.

A secretary for Stevens said he does not grant interviews.

Prosecutors argued in motions and in court on Tuesday and Wednesday that Stevens has accused Wine in Facebook posts of wanting "all-white" juries to decide verdicts in cases with black defendants.

Stevens’ Facebook postings came after a WDRB story last month reporting that Wine had asked the state Supreme Court to determine whether the judge was abusing his power by dismissing a jury because he felt it was lacking enough black people.

Stevens has written on Facebook that Wine was going to the Kentucky Supreme Court to “protect the right to impanel all-white juries” and that “is not what we need to be in 2015. Do not sit silently. Stand up. Speak up.”

His last Facebook posting on Tuesday morning implored defense attorneys to stand up and be heard on the issue.

Asked for a comment, Wine referred a reporter to a document on his website from the appeal to the Supreme Court.

"Despite assertions to the contrary, we do not advocate all white juries," Wine wrote. "We do advocate juries selected in accordance with our Supreme Court rules."

And in an affidavit filed this week in court, Wine said the fact that Stevens has "presumed to tell the world through social media that my actions were dictated by discriminatory attitudes, not only offends me, but leads me to reasonably conclude that Judge Stevens cannot be fair and impartial on cases in which I or my assistants are involved."

On Wednesday, as each case came before Stevens, Assistant Commonwealth's Attorney Dorislee Gilbert made the same motion, arguing the judge could not be impartial given his statements about Wine.

The judge responded by reading one of his Facebook postings about Wine in court – saying the top prosecutor would “live in infamy” – before reiterating that he could set aside his feelings and treat everyone involved in the case impartially.

Stevens also questioned why prosecutors did not ensure he received a copy of their motion Tuesday -- along with the Facebook postings attached -- so he could be prepared to respond.

The judge said he would like to respond to Minton’s order.

In October, Stevens halted a drug trial and dismissed the entire jury panel, asking for a new group to be sent up because the potential jurors were "not representative of the community."

And on Nov. 18, 2014, after a 13-member jury chosen for a theft trial ended up with no black jurors, Stevens found it “troublesome” and dismissed the panel at the request of a defense attorney.

“There is not a single African-American on this jury and (the defendant) is an African-American man,” Stevens said, according to a video of the trial. “I cannot in good conscience go forward with this jury.”

A new jury panel was called up the next day.

The Jefferson County Commonwealth’s Attorney’s Office and Attorney General asked the Kentucky Supreme Court to look at the issue and see if Stevens has the authority to dismiss jury panels because of a lack of minorities. The high court has agreed to hear arguments.

Minorities long have been being underrepresented on local juries. Several black defendants have complained over the years that they were convicted by an all-white jury - not of their peers.

The Racial Fairness commission - a group made up of local judges, lawyers and citizens - has studied the issue for years, monitored the make-up of jury panels and found them consistently lacking in minorities.

For example, in October, 14 percent of potential jurors were black, far below the estimated 21 percent for all residents of Jefferson County, according to records kept by the commission. In September, 13 percent of potential Jefferson County jurors were black.

Tanisha Hickerson, vice president of of Louisville's Black Lawyers Association, said too much attention is being paid to Stevens' Facebook postings without looking into the real issue.

"The issue being that there's not enough being done to ensure that our jury pools are composed of a cross section of our communities," she said. "A judge should have the discretion to grant the motion to dismiss a panel for being non-representative of the community. To strip a judge of that discretion is detrimental to the notion of all people having a fair trial in front of a jury of their peers."

In the November 2014 case, prosecutors argued the jury panel was chosen at random, as is typically done.

And prosecutors said dismissing a jury after they had learned about the case and sending them back to be with the original pool could taint jurors.

In requesting the Supreme Court hear the issue, Gilbert argued that other judges “may feel societal, political, and other pressures” to dismiss a jury for lack of minorities if allowed.

And Gilbert said that there was no proof the jury in the November 2014 case could not be fair and impartial just because of their race.

The judge “struck the jury based on nothing more than unsupported fear or impression that the jury might not be fair because of its racial makeup,” Gilbert wrote in the case, Commonwealth vs. James Doss. “There was no consideration of whether the commonwealth or the citizens who had sacrificed of their own lives to make themselves available for jury service had any rights or interests in continuing to trial with the jury as selected.”

In the case from last month, on the second day of the drug trial on Oct. 14, Stevens said he was concerned that the panel of jurors attorneys were to choose a jury from included 37 white people and only three black citizens. And two of the three potential black jurors had already been eliminated.

The defense attorney, Johnny Porter, suggested ensuring that the lone remaining black member of the panel makes the final jury.

Stevens told both sides about the Nov. 18 trial, how the second panel of jurors he called up included four black citizens and was more representative.

“We’ve already done this one time,” Stevens said. “So right off the bat, you’ve got a blueprint and we can be a lot more efficient, in theory.”

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“I think it’s unfortunate because in many cases the only way the public knows what’s going on in a criminal prosecution, which often ends up in a plea agreement or settlement, is the discovery filed in court,” said prominent First-Amendment attorney Jon Fleischaker, who represents WDRB. “This will add to the lack of information the public has about the criminal justice process.”

“I think it’s unfortunate because in many cases the only way the public knows what’s going on in a criminal prosecution, which often ends up in a plea agreement or settlement, is the discovery filed in court,” said prominent First-Amendment attorney Jon Fleischaker, who represents WDRB. “This will add to the lack of information the public has about the criminal justice process.”

On Monday, Judge Cunningham filed a notice of disqualification, potentially removing himself from the case because his impartiality "might reasonably be questioned." However, the judge ultimately left it up to prosecutors and defense attorneys to decide whether he should recuse. Both sides filed a response saying the attorneys had no objection to Cunningham presiding over the case.

On Monday, Judge Cunningham filed a notice of disqualification, potentially removing himself from the case because his impartiality "might reasonably be questioned." However, the judge ultimately left it up to prosecutors and defense attorneys to decide whether he should recuse. Both sides filed a response saying the attorneys had no objection to Cunningham presiding over the case.

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